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Employers NeedTo Be Aware Of Legal Risks Associated With Using Social MediaAccording to an April study by SnagAJob.com, businesses plan to increase employment by 18 percent this summer. As the resumes start pouring in from recent college grads and summer intern-hopefuls, many employers will be using social networking sites such as Facebook, Twitter and MySpace as part of their job applicant screening process. However, employers that make adverse hiring decisions based on social media content need to carefully weigh the advantages versus the potential legal risks involved. According to a Harris Interactive study commissioned in June 2009, 56 percent of employers said they use or are planning to start using social media for hiring purposes. The study also found that among those employers already using social media, 35 percent reported they have found content on social networking sites that caused them not to hire a candidate, including inappropriate photos or information, poor communication skills, and content bad-mouthing a previous employer, co-worker or client. “It is not surprising that employers are using beyond-the-resume techniques such as social media to screen for potential job candidates, as a wealth of information can be found just by looking at a person's personal social networking page,” said Chris Lang, associate at the Dallas office of national labor and employment law firm Fisher & Phillips LLP. “But employers need to be aware of potential legal risks associated with adverse hiring decisions based on social media content, including costly legal issues such as discrimination and retaliation claims, invasion of privacy litigation and violations of fair credit reporting laws as a result of using a third-party screening firm.” Discrimination and Retaliation: Employers obtaining information on current employees and job applicants through social media sites such as Facebook may be exposed to otherwise unknown information such as race, marital status, sexual orientation, familial responsibility, religion and a variety of other factors that could later be claimed as a protected category and used in a discrimination lawsuit for a failure to hire claim. An important defense for a failure to hire claim is actual ignorance of a protected characteristic - an investigation and review of an applicant's social-networking activity may negate the effectiveness of this defense. Employers should be wary of setting up fake accounts or “friend” requests to gain access to otherwise private information on a job applicant's social media page. In a court of law, this may not constitute permission for the employer to review private information. When an employer uses a third-party background screening firm that includes searches of social-networking sites as part of the background check, the employer is bound by the provisions of the Fair Credit Reporting Act (FCRA). While the FCRA does not prohibit employers from receiving or using a consumer report that contains information derived from social-networking sites, it does require disclosure of the consumer report if the employer relies on the report for an adverse hiring action. “The potential legal ramifications associated with using social media during the hiring process can be hard to navigate,” said Lang. “As statistics indicate, summer has been historically a season of 'new-hires' and now is the perfect time for employers to familiarize themselves with the legal risks involved in using social media as a hiring tool." "This up-front knowledge can help avoid expensive lawsuits, and the loss of valuable time and effort.” |
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